Thomas v. Oregon Metallurgical Corp.

602 P.2d 338, 43 Or. App. 149, 1979 Ore. App. LEXIS 3355

• Court: Court of Appeals of Oregon
• Decided: November 5, 1979
• Docket: No. 53443, CA 13422
• Status: Published

Opinion

ROBERTS, J.

Plaintiff appeals from the trial court’s granting of lefendant’s motion for summary judgment. The ques-;ion presented is whether a person who has filed a complaint with the Commissioner of Labor (Commissioner) pursuant to ORS 654.062(5)(b), which provides remedies for persons discharged from employment for issisting with enforcement of safety standards, may, ifter rejection of that complaint by the Commission, bring a civil action based on the same operative facts.

On January 24, 1978, plaintiff filed a complaint vith the Civil Rights Division alleging that he had seen discharged from his position with defendant corporation on January 13, 1978 for reporting safety dotations to a Workers’ Compensation Board inves-igator. A compliance officer for the Civil Rights Division issued a set of Findings of Fact together with the ollowing "Determination.”

"The Civil Rights Division of the Bureau of Labor finds NO SUBSTANTIAL EVIDENCE OF UNLAWFUL DISCRIMINATION in violation of ORS 654.062.”

Plaintiff’s attorney subsquently received a letter rom the Civil Rights Division informing him that laintiff’s complaint had been closed because investi-ation and review had revealed no substantial evience to support the complaint. Plaintiff then filed lis civil action which was decided in defendant’s avor after defendant filed a motion for summary ldgment based on a contention that plaintiff’s civil uit was barred by statute because he had already iken his complaint to the Commissioner.

In order to determine whether and under what ircumstances a complaint to the Commissioner might ar a civil action, we must examine provisions in both ORS ch 654 and ORS ch 659.

ORS 654.062 requires employes to notify their employers of any violation of safety laws, standards or regulations in the workplace. ORS 654.062(5)(a) forbids discharge from employment or other discrimination against any employe who makes such a complaint and ORS 654.062(5)(b) provides the following remedies:

"(b) Any employe or prospective employe who believes that he has been barred or discharged from employment or otherwise discriminated against in compensation, or in terms, conditions or privileges of employment, by any person in violation of this subsection may, within 30 days after he has reasonable cause to believe that such a violation has occurred, file a complaint with the Labor Commission alleging such discrimination under the provisions of ORS 659.040. Upon receipt of such complaint the Labor Commissioner shall process the complaint and case under the procedures, policies and remedies established by ORS 659.010 to 659.110 and the policies established by ORS 654.001 to 654.295 in the same way and to the same extent that the complaint would be processed by the Labor Commissioner if the complaint involved allegations of unlawful employment practices based upon race, religion, color, national origin, sex or age under subsection (4) of ORS 659.030. The affected employe shall also have the right to bring a suit in any circuit court of the State of Oregon against any person alleged to have violated this subsection. The Labor Commissioner or the circuit cotut may order all appropriate relief including rehiring or reinstatement of the employe to his former position with back pay.” (Emphasis supplied.)

The above statute gives the aggrieved employe a choice of remedies; he may file a complaint with the Commissioner who will process it pursuant to ORS ch 659 or he may bring a suit in the circuit court. Although the statute employs the conjunctive "shall also have” to introduce the second forum or relief, suggesting that these are not alternative remedies, this language must be harmonized with the rest of the statutory scheme. Our examination of all of the pertinent statutes leads us to the conclusion that an employe’s tight to bring a civil suit after a complaint has been filed with the Commissioner is not without limitation.

Under the terms of ORS 654.062(5)(a), by choosing to proceed with a complaint to the Commissioner, plaintiff placed himself within the ambit of ORS ch 359. ORS 659.095 makes the following provision for the filing of a civil suit after a complaint has been wrought to the Commissioner.

"* * * If prior to the expiration of one year from the filing of a complaint pursuant to this section the commissioner dismisses the complaint for any reason other than a dismissal pursuant to subsection (3) of ORS 659.060, or the complainant requests the commissioner to terminate proceedings with respect to the complaint, the commissioner shall notify the complainant of said dismissal or termination in writing, and within 90 days after the date of mailing of such notice of dismissal or termination, a civil suit may be filed as provided for in ORS 659.121.” (Emphasis supplied.)

Under the terms of the above statute, plaintiff had the right to file a civil suit provided his complaint was not dismissed pursuant to ORS 659.060(3).¹ This subsection is part of the statute providing for hearings on complaints; the statute provides in relevant part:

"(1) In case of failure to resolve a complaint after reasonable effort under ORS 659.050 [allows commissioner to attempt to settle the complaint where investigation reveals substantial evidence supporting the allegations], or if it appears to the commissioner that the interest of justice requires a hearing without first proceeding by conference conciliation and persuasion, the commissioner shall cause to be prepared and served upon each respondent required to appear at such hearing such specific charges, in writing, as he will be required to answer, together with a written notice of the time and place of such hearing.

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"(3) After considering all the evidence, the commissioner shall cause to be issued findings of facts, and conclusions of law. He shall also issue an order dismissing the charge and complaint against any respondent not found to have engaged in any unlawful practice charged and an appropriate cease and desist order against any respondent found to have engaged in any unlawful practice charged.”

ORS 659.060(3), read together with subsection (1), provides for dismissal after a hearing on the merits. This case never reached the stage contemplated by the above statute. The Commissioner did not issue an order dismissing the charge following a hearing on the merits. Rather, the Commissioner wrote a letter to defendant’s attorney indicating that the case had been closed following a preliminary investigation. Under the facts of this case, plaintiff had a right to bring suit under ORS 659.095, and the trial court erred in granting defendant’s motion for summary judgment.

Reversed and remanded.

1 In an affidavit in opposition to the motion for summary judgment, plaintiffs attorney contends that plaintiff had withdrawn his complaint from the administrative process as of June 2, 1978. Attached to the affidavit is a copy of a letter of that date from plaintiffs attorney to the üivil Rights Division stating that plaintiff had decided to withdraw his complaint and file an action at law and asking that plaintiffs complaint be removed from the Division’s active file.

Although such a withdrawal would clearly allow plaintiff to file a civil suit under the terms of ORS 659.095, plaintiff does not raise the withdrawal of the complaint as part of this appeal and, since we reverse on other grounds, we do not consider it.